TANGGAPAN tt aaa a ae [TANGEAPAN We OMBUOSKTAN | Republic of the Philippines R ae 2017 OFFICE OF THE ‘OMBUDSMAN Quezon City TWPISYON_MG_AECORBS SENTRAL Bayan Muna REP. CARLOS ISAGANI ZARATE, et al. Complainants, — Case No. OMB-C-G-16-0283 Case No. OMB-C-A-16-0245 For: Illegal Use of Public ~ Versus - Funds or Property or Technical Malversation, Usurpation of Legislative Powers, Violation of Section 3 Former President BENIGNO (e) of RA. 3019, Grave SIMEON C. AQUINO Ill, and Misconduct, Conduct FLORENCIO ABAD, Former prejudicial to the Best Interest Secretary of the Department of of Public Service and Gross Budget and Management (DBM), Dishonesty ieee: x MOTION FOR RECONSIDERATION Complainants, by undersigned Counsel, most respectfully aver: 1. On March 3, 2017, the Honorable Office of the Ombudsman rendered a Decision in the above-captioned case, the dispositive part of which states: WHEREFORE, this Office, through the undersigned: (a) FINDS PROBABLE CAUSE to INDICT respondent FLORENCIO B. ABAD for Usurpation of Legislative Powers, as defined and punished under Article 239 of the RPC; (b) FINDS. SUBSTANTIAL EVIDENCE against respondent FLORENCIO B. ABAD for Simple Misconduct and hereby orders his SUSPENSION for THREE (3) MONTHS without pay.Xxx (c) DISIMSSES the criminal and administrative charges against respondents BENIGNO SIMEON C. AQUINO Ill and MARIO L. RELAMPAGOS. SO ORDERED. 2. A copy of said Decision was received by Complainants through their Counsel on March 7, 2017. Under the Rules, they have 5 days, or until March 12, 2017 within which to seek reconsideration of the case. 3. Considering that March 12, 2017 falls on a Sunday, the present Motion for Reconsideration being filed today, March 13, 2017 is timely. GROUNDS FOR THE MOTION |. THE HONORABLE OFFICE OF THE OMBUDSMAN COMMITTED GRAVE ERRORS OF FACTS AND LAWS IN NOT FINDING PROBABLE CAUSE TO INDICT AQUINO AND ABAD FOR (A) TECHNICAL MALVERSATION AND (B) VIOLATION OF SECTION 3 (E) OF RA 3019. ll, THE HONORABLE OFFICE OF THE OMBUDSMAN COMMITTED GRAVE ERRORS OF FACTS AND LAW IN NOT FINDING PROBABLE CAUSE AGAINST AQUINO FOR USURPATION OF LEGISLATIVE POWERS. Il, THE HONORABLE OFFICE OF THE OMBUDSMAN COMMITTED GRAVE ERRORS OF FACTS AND LAW IN FINDING THAT ABAD MERELY COMMITTED SIMPLE MISCONDUCT AND NOT GRAVE MISCONDUCT.DISCUSSION/ARGUMENTS THERE IS PROBABLE CAUSE AGAINST AQUINO AND ABAD FOR TECHNICAL MALVERSATION FIRST ELEMENT OF TECHNICAL MALVERSATION IS PRESENT AS TO AQUINO AND ABAD 4. The Complaint charges AQUINO and ABAD of the crime of Technical Malversation, which is defined under Article 220 of the RPC. Technical Malversation is different from Malversation under Article 217. A comparison of their definitions is shown below: Article 217. Malversation of public funds or property Article 220. lilegal use of public funds or property Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property xxx Any public officer who shall apply any public fund or property under his administration to any public use other than for which such fund or property were appropriated by law or ordinance xxx. 5. A plain reading of the law reveals that Article 220 states “Any public officer...” without repetition of Article 217's “Any public officer who, by reason of the duties of his office, is accountable for public funds or property...”6. Moreover, the case of Parungao v. Sandiganbayan,' specifically stated the difference in the elements of Malversation and Technical Malversation: . “A comparison of the two articles reveals that their elements are entirely distinct and different from the other. In malversation of public funds, the offender misappropriates public funds for his own personal use or allows any other person to take such public funds for the latter's personal use. In technical malversation, the public officer applies public funds under his administration not for his or another's personal use, but to a public use other than that for which the fund was appropriated by law or ordinance.” (Emphasis supplied) 7. Parungao distinguishes between “(a) the offender is a public officer; (b) by reason of his duties he is accountable for public funds and property xxx" in Malversation; and “(a) the offender is an accountable public officer; (b) he applies public funds or property under his administration to some public use »«” in Technical Malversation. 8. In its Decision’, the Honorable Office of the Ombudsman, while correctly citing Parungao in enumerating the essential elements of Technical Malversation, has erroneously cited Barriga vs. SB° and Panganiban vs. People* in attempting to define what is an “accountable public officer’ within the context of Technical Malversation. Clearly, all the accused in Barriga and Panganiban cases are charged with Malversation of Public Funds under Article 217 and not Technical Malversation under Article 220. 9. The assailed Decision negated the first element of Technical Malversation by finding that AQUINO and ABAD are not “accountable public officers” following the definition provided in the cases of Barriga vs. SB and Panganiban vs. People. 10. A closer look at the Panganiban case would show that the cited case does not apply herein. *G.R. No. 96025, May 15, 1991. > page 21 * GRINos. 161784-86, 26 April 2005. “GRINo. 211543, 9 December 201541. In Panganiban, the Municipal Mayor was charged with Malversation of Public Funds under Article 217 of the RPC for his failure ~ to liquidate a cash advance. The Supreme Court in aquitting the Municipal Mayor pointed out that the issue merely arose due to the error committed by the Office of the Deputy Ombudsman for Luzon in charging the accused of the crime of malversation despite the fact that the Municipal Mayor received a cash advance properly. According to the Supreme Court, what should have been charged is Failure of Accountable Officer to Render Accounts under Article 218 of the RPC. 12. In Barriga the Supreme Court clarified that Article 217 pertains to “an accountable public officer is one who has actual control of public funds or property by reason of the duties of his office.” However, the Supreme Court goes on to state that it is the nature of the public Officer's duties that determines whether or not malversation could be committed by him. “Even then, it cannot thereby be necessarily concluded that a municipal accountant can never be convicted for malversation under the Revised Penal Code. The name or relative importance of the office or employment is not the controlling factor. The nature of the duties of the public officer or employee, the fact that as part of his duties he received public money for which he is bound to account and failed to account for it, is the factor which determines whether or not malversation is committed by the accused public officer or employee. Hence, a mere clerk in the provincial or municipal government may be held guilty of malversation if he or she is entrusted with public funds and misappropriates the same.” 13. Either way, these cases pertain to the Malversation cases under Article 217 of the RPC, and not Technical Malversation under Article 220. 14. | The Supreme Court's distinction between these two crimes, as explained in Parungao, and as a necessary consequence of the difference in their definitions under the Revised Penal Code, should pave the way for and support the Complainants’ assertion that unlike malversation under Article 217 of the Revised Penal Code, technical malversation does not require that the offender be an “accountable public officer’ as defined in Barriga and Panganiban.15. — Following the plain text of the law, the element “that public fund or property misapplied was under his or her administration” should inform how the “accountable public officer’ stated as an element in - Parungao should be articulated. 46. The word “administration”® generally means “performance of executive duties” or “management’. There is therefore a stark distinction between a public officer who is “accountable for public funds and property” (Malversation) and a public officer who “administers public funds and property” (Technical Malversation). 17. In the first instance, the cashiers, treasurers, collectors, property officers in public service, would generally fall under the definition of Malversation as they have, by virtue of their duties, actual control of public funds or properties. 18. In the second instance, those public-officiais whose duties pertain to the administration of public funds and property, such as the executives in public service, fall under the definition of Technical Malversation. 19. Further, the nature of the crime of Technical Malversation necessarily requires the exercise of discretion, albeit gravely abused, meaning that the public officials do not merely perform ministerial functions but rather have greater authority with respect to how funds are administered or juggled. 20. In this light, AQUINO and ABAD are the most accountable officers over public funds per their mandates in the 1987 Constitution and the Administrative Code. As Chief Executive and Budget Secretary, they are the administrators of the entirety of the national budget. 21. | The roles of AQUINO and ABAD could not be discounted as mere “policy-makers” of the DAP scheme. Rather, the policy direction chosen by Respondents are the raisons d’étre of the DAP. Thus, it is error for the Honorable Office of the Ombudsman to dismiss their * hreps://wnww. merriam-webster.com/dictionary/administration (Last accessed March 13, 2017). 6participation as mere “policy-makers”® their acts are evidence to the fact that they are indeed the administrators of the entire national budget. SECOND ELEMENT OF TECHNICAL MALVERSATION IS PRESENT AS TO AQUINO AND ABAD 22. As to the second element of the offense of Technical Malversation, it is required that the public officer “applies public funds or property under his administration to some public use”. 23. _ Inits Decision, the Honorable Office stated that AQUINO and ABAD “did not apply public funds to other public purposes. The issuance and approval of memoranda and budget circulars, in a strict sense, cannot be equaled with application of public funds under the statute.” 24. However, further scrutiny of the assailed Decision reveals an apparent error. In denying the existence of the second element of the offense, the Honorable Office stated that “respondents declared unobligated allotments and unreleased appropriations as “savings” and directed the application of these funds to PAPs different from those listed in the GAAs.”® Thus, while claiming that AQUINO and ABAD did not “apply” public funds, the Decision nevertheless admits that Respondents directed their application. Herein lies the flaw in the assailed Decision’s logic. 25. By directing the application of public funds AQUINO and ABAD are the clear masterminds or authors of the crime. They are thus Principals by Direct Participation in the crime of Technical Malversation. 26. Likewise, it is error for the Honorable Office to state that the declaration of savings is irrelevant to the discussion of Technical Malversation and that premature declaration of savings per se does not consummate the offense. ° Premature declaration of savings is merely the first step in the consummation of the offense of Technical SPage 22. ” Page 23-24. * page 24. Emphasis supplied. *Page 26.Malversation, which was consummated upon application of the public fund. 27. The Decision further ascertained whether AQUINO and ABAD “had legal authority to transfer funds’'' and concluded that Respondents relied on the Administrative Code and the 2011 and 2012 GAAs in their implementation and/or approval of the transfers of funds under the DAP and as such, these “provisions gave the President blanket authority to approve the use of any savings in the regular appropriations in the GAAs for PAPs of any department, office or agency to cover a deficit in any other item of the regular appropriations.” 28. This particular discussion in the Decision, as to whether there is legal authority to transfer funds, is irrelevant to the crime of Technical Malversation. Obviously, existence of a legal authority to transfer funds is not an essential element of the crime of Technical Malversation. At best, such argument is a mere extenuating circumstance which could affect the application of penalties, but never to negate the existence of the crime. 29. The same could be said to the Decision’s comment that “these cases involve the interpretation of highly technical provisions of law pertaining to budget management.”** To even offer such perspective is detrimental and prejudicial to public service and a disservice to the public. Surely the Filipino people have good reason to assume and trust that our public officials possess the requisite technical knowledge and expertise in the discharge of their duties. Any expectation less than that clearly puts our democratic and republican system in mockery. THIRD ELEMENT OF TECHNICAL MALVERSATION IS PRESENT AS TO AQUINO AND ABAD 30. The assailed Decision did not anymore offer any discussion as to the third element of Technical Malversation, that is, whether the public use for which the public funds or property were applied is different from the purpose for which they were originally appropriated by law. See for example the éase of Catingub v. CA, GR No. L-28701, March 25, 1983, which discussed the similar nature of estafa and malversation in that they are both transitory or continuing crimes. Page 27. » page 29-30. * page 31.34 Clearly, the Supreme Court's Araullo Decision and Resolution on the Motion for Reconsideration are sufficient bases for the finding of actual diversion of public funds to other purposes. THERE ARE FACTUAL GROUNDS FOR THE FINDING OF PROBABLE AGAINST AQUINO AND ABAD FOR VIOLATION OF SECTION 3 (E) OF RA 3019 32. The Decision found that AQUINO and ABAD did not act with “either evident bad faith or gross inexcusable negligence in implementing the authority to transfer funds to augment deficient items in the GAA" The Honorable Office further found that “the adoption of the DAP was motivated by a good purpose to spur economic growth and boost the national economy. Considering the said objective, it cannot likewise be said that they acted without care or with conscious indifference to consequences insofar as other persons may be affected.”'° 33. The Decision did not agree with Complainant's assertion that AQUINO’s evident bad faith or gross inexcusable negligence is shown by the fact that in 2009 when still a senator, AQUINO already knew about how the national budget is susceptible to abuse by the Executive. As argued in the Complaint: “It should be stressed that Aquino already knew beforehand that his acts of tinkering with the annual GAAs and fiscal dictatorship are contrary to the Constitution and a grave sin to the principles of separation of powers, transparency, and good governance. To quote from his own Explanatory Note in Senate Bill 3121 which Respondent Aquino filed in 2009: [Als the “power of the sword” belongs to the President, “the power of the purse” resides in Congress. In practice however, the President still wields considerable control over public spending through the exercise of budget impoundment. XXX x x x [T] presidential prerogative has been misused and abused, and has emasculated Congress’ authority to check * Page 33. ™ Page 33-34.the President's discretionary power to spend public funds. In effect, the President seems to a have a vast and unbridled control over the national budget. This bill seeks to increase congressional oversight and to limit executive influence over specific appropriations in the General Appropriations Act. While his Explanatory Note mentions only impoundment, his bill as a whole sought to control rescission, reservation, and deferral of releases, all of which are similar to the unconstitutional acts committed through the DAP.” 34. With due respect, Complainants could not subscribe to the Decision’s apparent perspective pertaining the duties and responsibilities of our public officials, that is, they are stupid or idiots until proven otherwise. On the contrary, Complainants ascribe the highest standards to them, especially to the Chief Executive, whose most basic task is to uphold and defend the Constitution. The President and his alter egos are thus presumed, like ordinary people, to know the law, and as such ignorance, feigned or otherwise, is not an excuse. 35. | The same can be said of ABAD, who was in public service for a long period of time, including the legislature. 36. The assailed Decision disagreed with the Complainants’ assertion that undue injury to the government and public service could be sourced from the damages due to lost funds—ost hiring power, lost authority to create infrastructure, and others— that necessarily proceed from the fact of withdrawal of funds from the agencies before the appropriate time. 37. For Complainants there is undue injury where the hiring of and benefits for personnel in government agencies which are largely time-bound such as Department of Education and state universities and colleges. When their funds were prematurely withdrawn and declared as savings, and without compliance with the GAAs, they lost the spending power to hire regular personnel and give them their benefits at the right time (before the start of school year or semester or upon compliance of documentary requirements for allowances, for instance), the spending power to hire contractual and casual employees and job order or contract of service personnel to augment their regular complement, their ability to * page 23 of the Complaint Affidavit. 10themselves declare savings at the end of the year to fund collective negotiation incentives and deficiencies in personnel benefits as authorized by the GAAs, among others. 38. According to the assailed Decision, such purported damage does not constitute the undue injury under the statute.” Further, the Decision said that “even the Supreme Court found that the DAP yielded undeniably positive results.” 39. | However, such finding by the Supreme Court is only for the purposes of laying the basis for the application of the Operative Fact Doctrine and nothing else. For clearly, the “other side of the coin” is that Respondents AQUINO and ABAD, in both the Supreme Court and in this present proceedings, were shown to have violated the laws and the 1987 Constitution. 40. In the case of Fonacier vs. Sandiganbayan,"® the Supreme Court therein stated that, referring to the interpretation of “undue injury” that “the third element of the offense is satisfied when the questioned conduct causes undue injury to any party, including the government, or gives any unwarranted benefit, advantage or preference. Proof of the extent or quantum of damage is not thus essential; it should be sufficient that the injury suffered or benefit received can be perceived to be substantial enough and not merely negligible.” 41. In this present case, the Complainant has alleged the extent of the damage caused by the creation and implementation of the DAP. It therefore complies with the standard of quantifiability and demonstrability, for this Honorable Office merely have to look at the submitted DAP documents to know the scope of the damage caused to the government. Amounting to billions of pesos in public funds, the same is definitely substantial and not merely negligible. ? page 35. *€GR No. L-50691, December 5, 1994, Emphasis supplied. 11THERE IS PROBABLE CAUSE FOR USURPATION OF LEGISLATIVE POWERS AGAINST AQUINO 42. In the Decision, the Honorable Office concluded that “Abad, through the issuance of NBC 541, unduly modified, expanded the meaning of savings under the GAA, which is beyond his authority since this is a power reserved to Congress. An argument could even be made that this circular constitutes an attempt to repeal the GAA insofar as the definition of savings is concerned. It is relevant to point out that the Supreme Court intimated that the DBM actually forced the generation of savings in order to have a larger fund for discretionary spending. Considering that the circular also immediately directed the withdrawal of all released allotments in 2011 charged against the 2011 GAA, which remained unobligated as of 30 June 2012, this Office is inclined to agree to such argument.”’* 43. The Decision further concluded that “through NBC 541, Abad effectively suspended provisions of the 2011 and 2012 GAAs, an act also proscribed under Article 239 of the RPC.””° 44. The Decision made an exhaustive discussion as to the existence of probable cause for the crime of Usurpation of Legistative Powers as against Respondent ABAD. However, glaring is the lack of mention with respect to AQUINO. 45. _ The factual narration of the Honorable Office itself points to the role of AQUINO in the commission of this particular offense, thus: “THE FACTUAL BACKGROUND In October 2011, Abad, by Memorandum dated 12 October 2011, sought the approval of Aquino to implement the DAP, xx. * page 40-41. Page 41.Abad proposed the following fund sources for 2011: xxx Aquino approved the program on 12 October 2011. On 21 December 2011, Abad requested the grant of Omnibus Authority to consolidate savings/unutilized balances in FY 2011 corresponding to completed or discontinued projects which may be pooled to fund additional projects or expenditures. Aquino approved the request on even date. The following year, Abad, by Memorandum dated 25 June 2012, requested the grant of authority to: 1) consolidate savings/unutilized balances in FY 2012 corresponding to unfilled positions and completed or discontinued projects; and 2) withdraw and pool available and unobligated balances of agencies with low levels of obligations, as of 30 June 2012, both for continuing and current allotments. Aquino approved the request subject to further discussion on the proposed additional projects identified for funding. Abad proposed the following fund sources for 2012: xxx On 18 July 2012, Abad issued National Budget Circular No. 541 (NBC 541) - Adoption of Operational Efficiency Measure — Withdrawal of Agencies’ Unobligated Allotments As of June 30, 2012 — to carry out the objectives of the above-stated Memorandum dated 25 June 2012. By Memorandum dated 04 September 2012, he requested the realignment of the funds for priority projects and expenditures of the government. In May 2013, Abad requested the grant of similar authority to consolidate savings/unutilized balances and withdraw unobligated balances of agencies with low levels of obligations in FY 2013. This request was likewise granted, but with reservation.”* 46. AQUINO, by approving the various DAP issuances, directly participated in the commission of the offense. 47. The Decision, in its attempt to shield AQUINO mentioned only NBC 541 apparently as the only document/act which “unduly modified, expanded the meaning of savings under the GAA” and that “through NBC 541, Abad effectively suspended provisions of the 2011 and 2012 GAAs’. 2 pages 3-6; citations omitted; emphases supplied. 1348. However, a closer scrutiny of all the other DAP issuances reveal that all of them “unduly modified, expanded the meaning of savings under the GAA”; all of them “effectively suspended provisions of . the 2011 and 2012 GAAs.” 49. These DAP issuances, bearing the signature and approval of AQUINO constitute the crime of Usurpation of Legislative Powers under Article 239 of the RPC. 50. Assuming but definitely not conceding that it is only NBC 541 which constitute as a crime under Article 239 of the RPC, such document could not have been issued by ABAD without the other DAP issuances preceding it. NBC 541 merely confirms AQUINO’s other approved actions. Thus, AQUINO is still liable. ABAD’S ACT IS NOT MERELY SIMPLE MISCONDUCT, BUT RATHER GRAVE MISCONDUCT ’ 51. The Decision concluded that ABAD is administratively liable for Simple Misconduct, finding that “his actions were motivated only by a desire to fast-track public spending and push economic growth and did not involve corruption, willful intent to violate the law or disregard of established rules, his misconduct is only Simple and not Grave.’ 52. To the contrary, ABAD's very act of authoring the various DAP issuances shows willful intent to violate the law or disregard of established rules. 53. The assailed Decision erroneously erases the distinction between “motive” and ‘intent’ as used in criminal law. It erroneously posits that “motive”, whether good or bad, could supplant the existence of criminal ‘intent’. 54. However, it is basic criminal law precept that specific intent is not synonymous with motive. Motive is not an essential element of a crime. ® page 42. Emphasis supplied. 1455. Therefore, whatever is ABAD's motive for the creation of the DAP, the same is immaterial for this Honorable Office's purposes in ~ determining the existence of probable cause for the crimes above- enumerated. 56. Likewise, it is basic that “an unlawful act was done with an unlawful intent.” “Hence, dolo may be inferred from the unlawful act. In several cases, the Supreme Court ruled that ‘When it has been proven that the appellants committed the unlawful acts alleged, it is properly presumed that they were committed with full knowledge and with criminal intent, ‘and it is incumbent upon them to rebut such presumption. ‘Further, the same court also ruled that when the law plainly forbids an act to be done, and it is done by a person, the law implies the guilty intent, although the offender was honestly mistaken as to the meaning of the law which“he had violated. If the act is criminal, then criminal intent is presumed.” 57. Simply put, the finding that ABAD has committed the crime of Usurpation of Legislative Powers as defined in Article 239 of the RPC, the same necessarily qualifies his misconduct as grave. PRAYER WHEREFORE, the Complainants that the Honorable Office of the Ombudsman reconsider its March 3, 2017 Decision, and instead render judgment 1. Finding probable cause to indict AQUINO and ABAD for the crime of Technical Malversation; 2. Finding probable cause to indict AQUINO and ABAD for violation of Section 3 (e) of RA 3019; 3. Finding probable cause to indict AQUINO for the crime of Usurpation of Legislative Powers; 4. Finding substantial evidence against ABAD for Grave Misconduct. * Abdullah v. People, GR No. 150129, April 6, 2015. Citations removed. Emphasis supplied. 35Respectfully submitted. Quezon City, March 13, 2017. NATIONAL UNION OF PEOPLES’ LAWYERS Counsel! for Complainants 3/F Erythrina Building No. 1 Matatag cor. Maaralin Sts. Central District, Diliman, Quezon City Tel No.: (632) 920-6660 By: JULIAN F. OLIVA, JR. IBP No.1069069-1/19/17- RSM PTR No. 3951039C- 1/18/17- Quezon City Roll of Attorneys No. 35870 MCLE Compliance No. V-0019459 — 04/22/2016 = Batangas 3/17 - Quezon City 16COPY FURNISHED AND NOTICE OF SUBMISSION: Clerk of the Office of Ombudsman Agham Road, Diliman, Quezon City Benigno Simeon S. Aquino Ill 25 Times St. West Triangle Quezon City QD Fle 085 195 2Z Ne dry taut a) li Florencio Barsana Abad No. 7 Valerio Kalaw Street, Tierra Bella Homes, Barangay Culiat, Tandang Sora, Quezon City KD 726005 4422 Ge City te 3 /]3/1Z Greetings! Please submit the foregoing Motion for the consideration of the Honorable Office of the Ombudsman immediately upon receipt hereof. EXPLANATION For lack of material time and personnel, the foregoing Motion was served to the parties through registered mail. 7